Clause 29
Health Bill [Lords]
6:00 pm

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 150, in clause 29, page 31, line 7, leave out ‘prescribed circumstances’ and insert

‘accordance with regulations issued by the Secretary of State’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 151, in clause 29, page 31, line 7, at end insert—

‘(2C) The regulations under this section must make provision—

(a) as to the circumstances under which a Primary Care Trust may provide local pharmaceutical services.

(b) as to a duty placed on Primary Care Trusts to report any plan to provide such services to the Secretary of State.’.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The amendments address my fear that parts of clause 29 are too loosely worded to merit the circumstances in which the Government claim that they would apply this legislation. I guess that all Committee members can follow that we have left pharmaceutical services in England and moved into chapter 5A, “Notices and penalties”. Although we have left the part of the Bill that dealt with them, we are now back to the question of local pharmaceutical services. I just wanted to make sure that we are all clear what we are talking about.

In the explanatory notes, the Government state that PCTs should be able to provide their own pharmaceutical services in the case of an emergency or an exceptional circumstance. The Bill will

“remove the restrictions in NHS legislation on PCTs providing local pharmaceutical services...or to other PCTs, in certain circumstances, for example, in the event of any emergency such as a flu pandemic or where there was no alternative provider.”

The clause is topical as well as important.

The impact assessment makes a similar statement by noting that PCTs will

“provide services themselves in an emergency or where there is no suitable alternative”.

It goes on to state:

“At this stage the Department has not identified a significant impact arising from these proposals, as the use by PCTs of these new provisions would be expected to be of limited duration and only in exceptional circumstances”.

That admission is at least a bit surprising, given that we are on the brink of a flu pandemic that could sweep across the nation at any moment. The Department obviously had swine flu in mind when drafting the Bill, as it referred to the flu pandemic in the impact assessment, yet it has not assessed the provisions’ impact in advance of an outbreak, which is a serious concern. Perhaps the Minister will address that matter in his response.

In a case where a PCT decides to provide a local pharmaceutical service, I understand that the strategic health authority would become the commissioner in order to prevent a situation from arising in which a PCT is performing the roles of both commissioner and provider. In clause 29, the Government amend legislation from the National Health Service Act 2006 to make provision for such circumstances.

My concerns with the Government’s amendments to the 2006 Act are twofold. First, there is an issue of accountability. If PCTs are to carry out the function only in an emergency, surely the circumstances in which they are permitted to provide pharmaceutical services should be prescribed on the face of the Bill; otherwise, there is nothing to prevent PCTs from providing services on a whim or in normal circumstances that do not qualify as an emergency.

What parties will define an emergency? Patently, that is the threshold. My amendments would allow for that by permitting the Secretary of State to publish in a series of regulations the circumstances in which a PCT could provide such a service. The amendments would also place on PCTs a duty to inform the Secretary of State of their intentions if they believe that circumstances allow them to provide a service.

The Minister may argue that at a time of emergency, he does not want so-called bureaucracy or red tape getting in the way of PCTs becoming pharmaceutical providers, and I am pretty sympathetic to that. However, it is only fair to argue that the Government must also make adequate provision for the times when we are not facing an emergency and prevent PCTs from providing the services unnecessarily. It seems ludicrous that under the proposed legislation, a PCT could conduct a PNA, identify a need and then seek to provide for that need itself, all within the bounds of the Bill. What is to stop a PCT deliberately identifying a need it knows that it can satisfy, purely for financial gain? I accept that that is an extreme form of analysis but it is not implausible, particularly if there were any real pressure on a PCT and it was looking to gain from the situation. I accept that we are discussing extreme circumstances, but as it is our job to point out significant pitfalls in the Bill, it is right and appropriate that I have raised such matters, without casting any aspersions on the current management and composition of boards of any PCT in the land. I hope that I have given a good explanation of why the amendments have been tabled. Obviously, the Minister’s reply will be both interesting and important.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Clause 29 amends section 144 and schedule 12 of the National Health Service Act 2006 to enable the Secretary of State to authorise PCTs to provide local pharmaceutical and drugs services in certain situations. There is no intention to enable PCTs to have a long-term role in providing drugs directly. Let me be clear. We want to enable PCTs to provide services in local situations, such as in an outbreak of pandemic flu or when there is no suitable alternative provider. The Bill would enable the strategic health authority or another PCT to become the commissioning body, in effect, of the providing PCT. That role and distinction will be maintained.

We propose these changes because it is prudent for a PCT to have the power to act as a service provider. The emergencies that we are describing are those in cases of a serious pandemic of, say, flu. We are aware that the current swine flu condition has been described by the World Health Organisation as a pandemic and that its impact so far on individuals has appeared in the vast majority of cases to be relatively mild. A dose of flu is never completely mild, but we must compare it with some of the strains that we have experienced over the decades. Flu can happen in waves; it can, in effect, pass through and come back again. We need to make provision for not only flu, but other eventualities, so the provision is very much seen as a precautionary step to enable us to put in place the necessary legal infrastructure, should the need for it arise.

The last thing that we want is to take certain steps to ensure that people have access to drugs, but not have the legal basis to do so. That would be wrong. It would be not thinking ahead. There could be circumstances in which we need to have such a provision, so let us be sure  that it is on the statute book. We can make the necessary regulations to enable safeguards. Section 175 of the 2006 Act defines prescribed as being prescribed by regulations made by the Secretary of State. The provision would not enable the PCT just to make a decision. I appreciate that the hon. Gentleman was stating an extreme case, but that could not arise because Parliament would have passed a regulation enabling such powers to be exercised.

There will be limited circumstances. There will be no long-term role as a provider of pharmacy services for PCTs. Their role will be to ensure continued provision in emergencies or when there is no suitable alternative. We envisage the powers being used in emergencies and used only as a temporary measure until the normal service can be resumed. Having given those reassurances, I hope that the hon. Gentleman will withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am grateful to the Minister. He has made it absolutely explicit that, in addition to what he describes as normal safeguards, there is no intent behind the provision for there to be a long-term role for PCTs to deliver such services. It is important to recognise that, perhaps in a less extreme example, there could be a temptation, particularly in the local human-to-human transmission flu pandemic that we are technically now in. I accept that the Minister was right to temper that approach by saying that we are now dealing with relatively mild and short-lived episodes.

None the less, there is a transmission taking place and we have rising numbers. No doubt the Government are taking advice, just as we do, but according to all the expertise the likely profile of pandemic flu is one wave, most probably followed by a larger wave in a second phase, and possibly even a third phase. Even if no long-term role is intended, in the case of the current pandemic—not the swine flu epidemic—there is a danger that we might say, “We had better keep the position going in case we need it for the second wave,” and therefore prolong it beyond what would be the normal intent of there being no long-term role.

It needs to be recognised that the profile of flu pandemics might make the body hesitate to get out of making the provision and therefore turn it from a short to a medium-term role. With that caveat it is clear where the intent lies. I do not think that the amendment needs to be pressed to a vote, but it has been useful to ensure there is absolute clarity. Given the current flu pandemic, it helps to have that in mind when one thinks about where a true emergency lies in such circumstances, and where therefore we need to ensure that there is a proper restraint on the ambitions of those who might want to set up services where they are not the best people to do so. I therefore beg to ask leave to withdraw the amendment.